The events of last week, where a post, including pictures, presented a purportedly damning case against an animal shelter and it’s proprietor, made me reflect on posts of this nature, their legitimacy, and their effects. It was a typical ‘name and shame’ post, which I see as little more than a Kangaroo Court:
Kangaroo Court, n. an unauthorized trial conducted by individuals who have taken the law into their own hands, such as those conducted by vigilantes.
From Cyber-shaming: Retribution in a Virtual World:
“In 1787, Benjamin Rush, a physician and signatory to the U.S. Declaration of Independence, called for an end to the stocks, the pillory and the whipping post, claiming that humiliation (which he referred to as “ignominy”) is a worse punishment than death. He said, “It would seem strange that ignominy should ever have been adopted as a milder punishment than death, did we not know that the human mind seldom arrives at truth upon any subject till it has first reached the extremity of error.” History supports his position: public humiliation in the stocks, the pillory and at the whipping post effectively ended a person’s hope of living a productive life. It negated any chance of reforming one’s life choices and being welcomed back into the fold as a full citizen. This is why, in the mid-19th century, authorities in Canada and the U.S. abandoned humiliation as a method of punishment (although the state of Delaware maintained the practice until well into the 20th century).
In the age of social media, public shaming is making a comeback. Today, society attacks online, in virtual anonymity, with little fear of recrimination
It is the modern-day version of the pillory, the stocks and the whipping post. While medieval townsfolk banded together to humiliate notable offenders in the public squares, today’s global villagers use the internet to out people who they think have crossed the moral line. However, instead of physically confining their target to an archaic tortuous device, they use platforms like Twitter and Facebook to invite everyone with a computer, tablet or smartphone to pile on humiliation in any way they see fit – with some twisted shamers resorting to threats of violence, rape and murder.
What has taken form is the biggest kangaroo court in human history – capricious, vicious, stupid, out of control, and all with effective impunity.”
The problem with kangaroo courts is that they are contrary to our Constitution, arguably unlawful, and in the light of all of these, definitively unethical.
The Constitution
“Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings.” – SA Constitution
An online kangaroo court does not constitute a ‘fair trial’ – given the public’s ignorance concerning the rules of evidence, which see below under ‘Law’, and given that silence is interpreted as guilt, and given the public tendency to make judgements based on emotional stimuli, the trial is anything but fair. In most cases, the accused is not given an opportunity to defend themselves, especially when a post goes viral and is shared in so many places I would be almost impossible to present a defence. The accused would also waste an enormous amount of time, and legitimise an illegitimate process.
Much of the testimony in a kangaroo court is little more than hysteria or hate speech, and the intent is less about justice than it is about self-righteousness, moral certitude and revenge. One cannot present a rational defence to an angry mob who are already convinced you’re guilty.
“Unlike justice—best represented by Lady Justice wearing a blindfold representing objectivity, and the notion that justice should be meted out objectively, without fear or favour, regardless of identity, personal wealth, power, or weakness – opinion from the media succumbs to our bias. Properly administered justice leaves no opportunity for bias.” – Michael Motsoeneng, attorney
A Kangaroo court is neither objective nor just. It is really just the tirade of an uninformed, uncivilised, prejudiced mob, who have little understanding of the Constitution or the Law.
The Law
Emma Sadleir, an Associate at Webber Wentzel, has explained that the instant a person publishes information on social media they are subject to the same laws that would apply to the traditional media. This means that every person who has access to the internet and publishes content is considered a publisher. “While we all have the right to freedom of expression, it’s not an unlimited right,” she warned, explaining this right meets its end when it limits others’ rights to privacy, dignity and reputation, or constitutes hate speech.
I spoke to one of my legal advisers about “name and shame” posts, and her response was as follows:
“Defamation is the intentional infliction of harm by the publication of a statement, unless that statement was both true and in the public interest. To make it clear : truth is not an absolute defence. There is the added requirement that it must be in the public interest, and that is not just what the public finds interesting. The important factors are publication and intent and the defences are truth (in the public interest), lack of intention to harm, or no harm inflicted.”
In other words, a statement can only be legitimate if is true and in the public interest while also neither intending harm nor inflicting any.
She went on further to say:
“I have a big problem with the “name and shame” brigade because the very fact that the word “shame” is used implies a realisation that what you are doing will have the effect of harming someone, and opens you up to admitting intent. This is one of the primary reasons why I have stopped following the animal welfare pages in social media.”
This from a person who has assisted me with several legal issues, has several rescue dogs and makes financial contributions to welfare organisations…
Since I have published on Blogs for many years, I am always aware that what I write can have an effect on others, and sometimes the line between public interest and not causing harm can be blurred. So I always make sure that I work off a solid information base, qualify that the information I have received is true, and that the conclusions drawn can be arrived at from the available information. I also consider carefully whether publishing the information and/or pictures will have an effect, and what the nature and degree of this effect will be.
Sadly, most of the people who post ‘Name and Shame’ posts do not consider these ramifications.
While we are thinking about law, it’s important to consider the rules of evidence, which are consistent in most civilised countries.
Rules of Evidence
DIRECT EVIDENCE
This is the evidence of a person who has experienced something crucially relevant to the case. For example, the testimony of A regarding the murder he saw B committing would be regarded as direct evidence.
HEARSAY EVIDENCE
Testimony from A that he heard B telling C that he had seen the accused, D, commit murder would be regarded as hearsay evidence (and, generally, rejected), if B was not in court to be cross-examined. In some cases, however, hearsay evidence will be accepted – for example, if a police officer reports the voluntary confession of the accused.
CIRCUMSTANTIAL EVIDENCE
If a statement is made to the court from which an inference may be drawn as to the existence or non-existence of a disputed fact, such a statement constitutes circumstantial evidence. For example, testimony from A that he saw B, blood-stained knife in hand, leaving the house in which C was stabbed to death would be regarded as circumstantial evidence that B was the killer. Circumstantial evidence will be accepted only if:
The inference drawn from it is consistent with all the other proved facts;
It is the only reasonable inference in the light of all the facts (in a criminal case);
It is the more plausible conclusion from among several conceivable ones (generally in a civil case).
EVIDENCE OF CHARACTER
This type of evidence is generally considered to be legally irrelevant.
Name and Shame posts will invariably infer guilt from circumstantial evidence, give hearsay far too much credence, and give the impression that character assassination constitutes a legitimate legal and ethical process.
“Social network users can be held legally accountable not only for statements they personally share but for other users’ statements they endorse by liking or sharing them, including Facebook pages.” ~ Emma Sadleir
Perhaps a little propriety is in order – which leads us to questions of ethics:
Ethics
Real people with lives, families, and emotions are affected by these Kangaroo courts.
In the case I speak of, a dog breeder visited a shelter – while the owner was out – and took some photos, and posted a series of defamatory statements on Facebook along with the pictures.
Before discussing the post, it’s important to mention that dog breeders are hardly in a position to take the moral higher ground with regard to animal welfare. They propagate the myth of the superiority of purebred dogs, add unnecessary numbers to the companion animal overpopulation crisis, and make a profit from this exploitation which in most cases is not reported to the Receiver of Revenue. Some ethics.
The pictures were interpreted by many as ‘disgusting’, ‘horrendous’ and similar labels as typically used by jury members in Kangaroo courts. While there were a few pictures suggesting a problem with hygiene and maintenance, several others were misleading, specifically those implying that the animals were exposed to dangerous electrical equipment or sharp-edged tools, which was not the case; the animals were in a separate section. A statement asserted that ‘All dogs have trailing leashes’, implying ‘forgetfulness on a massive scale’ – we all know how abusive this is – yet only one dog was seen with a leash on. There were several other exaggerations, coupled with an assertion that ‘this had been going on for a long time’, a vague assertion that did not qualify what ‘this’ was or how much time ‘long’ was. My favourite was the observation that there were no dog toys in the yard, as if this somehow implied abuse…
What was missing on a grand scale was any evidence whatsoever of animal neglect. The dogs looked in very good condition, a perception reinforced by the subsequent SPCA report. So there was no harm there.
There was more harm done to the shelter’s reputation and the reputation of the owner than any harm done to the animals, and the consequences were that some people stopped supporting the shelter, thereby indirectly affecting the animals. So much for the public interest, unless by ‘public interest’ you mean ‘what the public think is important’. By not helping, and sharing the post, the dogs were potentially affected far more.
The woman who runs the shelter was also subjected to abusive verbal attacks to add to the pressures of her already dire situation, and when I spoke to her I could sense the pain.
When I originally saw the post, I decided to ask some questions in order to fully understand the problem, rather than respond with the typical knee-jerk of the Kangaroo Court prosecutors, jury and executioners. What I discovered was that the photos and the statements had missed the real problem by focusing on the superficialities – the real issues could not be captured on camera or a few simplistic claims – and they were was also not solvable by judgement and condemnation. The situation turned out to be sad rather than reprehensible.
Kangaroo courts are primitive, stupid and counter-productive.
It’s time some members of the animal-loving community grew up and acted in a more civilised and intelligent manner.
“If you could read the secret history of your enemies, you will find in each person’s life sorrow and suffering enough to disarm all hostility.” – Benjamin Disraeli
Derek du Toit